Kelly v Slade

[2018] QCA 270

SUPREME COURT OF QUEENSLAND

CITATION:

Kelly & Anor v Slade & Anor [2018] QCA 270

PARTIES:

GORDON JAMES KELLY
(first appellant)
KATHLEEN MARY KELLY
(second appellant)
v
VICKI LEE SLADE
(first respondent)
DANNY ALEXANDER SLADE
(second respondent)

FILE NO/S:

Appeal No 191 of 2018
DC No 1634 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal – Further Order

ORIGINATING COURT:

District Court at Brisbane – [2017] QDC 288 (Porter QC DCJ)

DELIVERED ON:

12 October 2018

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Sofronoff P and Morrison JA and Atkinson J

ORDER:

That an indemnity certificate pursuant to s 15 of the Appeal Costs Fund Act 1973 (Qld) be granted to the respondents.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – APPEAL COSTS FUND – POWER TO GRANT AN INDEMNITY CERTIFICATE – where the Court allowed the appeal against the decision of the primary judge and concluded there should be a retrial – where the unsuccessful respondent seeks an indemnity certificate – where the appeal turned on findings about the credibility and reliability of witnesses – whether an indemnity certificate should be granted

Appeal Costs Fund Act 1973 (Qld), s 15

Aspasia Pty Ltd v Huntress [1985] 2 Qd R 241, cited
Mitchell v Pacific Dawn Pty Ltd[2003] QCA 526, followed

COUNSEL:

A N Skoien with H J Knowlman for the appellants
A B Fraser for the respondents

SOLICITORS:

Blue Ocean Law Group for the appellants
BR Solicitors for the respondents

1. SOFRONOFF P:  I agree with Morrison JA.

2. MORRISON JA:  On 28 August 2018 this Court delivered its reasons on the appeal, the issue being whether the learned primary judge erred in his examination of, and weight given to, contemporaneous documentation involving the transfer of an interest in a farm property between family members.[1]

   [1]Kelly & Anor v Slade & Anor [2018] QCA 197.

3. The proceedings below concerned an agreement between the appellants and the respondents that the respondents would pay Kathleen Kelly $260,000 for her one third interest in the farm, and Gordon Kelly $240,000 for his one third interest.  Gordon Kelly’s money was to be paid with $20,000 at settlement and the balance in two years, with no interest to accrue on the balance and he would be able to continue to reside on the farm.  The relief sought at trial was payment of the balance to Gordon Kelly.

4. The evidence surrounding the disputed agreement consisted of three conversations between Gordon Kelly and his daughter, the first respondent, and two contemporaneous documents known as Exhibits 4 and 14.

5. The appellants succeeded on appeal because the learned primary judge fell into error in not giving any consideration to Exhibits 4 and 14 as being contemporaneous evidence of the price to be paid to Gordon Kelly.  In his decision below, the learned primary judge made findings about the credibility and reliability of witnesses and concluded that a binding agreement between the parties could not be found…